High Court of KeralaSingle Judge2019-12-16Appeal disposed of; remanded to Tribunal for fr...

N.P. Usman Koya & Others v. Salim Babu & Another & The United India Insurance Co. Ltd.

Case / Petition Number:MACA No. 1003 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2019-12-16
Court Decision / Holding: Appeal disposed of; the impugned award is set aside and remanded to the Motor Accidents Claims Tribunal, Kozhikode, for fresh consideration with reasonable opportunity for both sides to adduce further evidence (oral and documentary). The Tribunal is directed to conclude the matter within three months from appearance of respondents 1 and 2, with appellants and the 3rd respondent appearing on 10.02.2020.
Final Disposition: Appeal disposed of; remanded to Tribunal for fresh consideration with directions to allow both sides to adduce further evidence; time-bound disposal within three months; appearance fixed on 10.02.2020.

Parties to the Case

Appellants / Petitioners

N.P. Usman Koya
N.P. Amina W/o UsmanKoya
N.P. Sumayath (Minor)
N.P. Salman S/o UsmanKoya (Minor)

Respondents

Salim Babu M.P. Padikkave ttill House, Vavadd Post, Koduvally, Kozhikode
C.T. Babu S/o Theyyan Chundakunnummal House, Thamarassery Post, Kozhikode
The United India Insurance Company Ltd, Divisional Office, Seema Towers, Mavoor Road, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• Smt. Latha Prabhakaran
• Sri. K.M. Jamaludheen

Counsels for Respondents

• Sri. John Joseph Vettikad

Case Synopsis & Summary

This is a Motor Accident Claims Appeal (MACA) arising from a claim under Section 166 of the Motor Vehicles Act, 1988, challenging an award of the Motor Accidents Claims Tribunal, Kozhikode, in respect of a death in a road accident on 14 May 2002 involving a motorcycle KL-11/J-9373 and a minibus KL-11/F-3042. The appellants, who are the legal heirs of Siddique (deceased), contend that the Tribunal erred in holding the accident primarily to be caused by the deceased’s rash riding while not establishing this on the record and while relying on the absence of a valid driving licence as a decisive factor. The insurer contends policy coverage but disputes negligence; the Tribunal found contributory negligence on the part of the deceased due to lack of licence and improper driving, holding that respondents were not liable for compensation. The High Court references judicial principles from Supreme Court decisions (notably Sudhir Kumar Rana and Dinesh Kumar J.) to emphasize that lack of licence does not automatically establish contributory negligence and that evidence must substantiate rash or negligent driving. The court ultimately intervenes, setting aside the Tribunal’s award and remanding for fresh evidence, indicating a time-bound re-adjudication while ensuring a fair opportunity for both sides to present evidence.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Contributory negligence doctrine: definition as the failure to avoid consequences arising from another’s negligence (Sudhir Kumar Rana v. Surinder Singh)
Absence of driving licence alone does not establish contributory negligence; need for supporting evidence of rash/negligent driving (as per Sudhir Kumar Rana and related judgments)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal’s finding of contributory negligence rests on conjecture and on the faulty premise that lack of a valid driving licence automatically amounts to negligent driving by the deceased. They assert that the absence of a licence cannot by itself establish rash driving without concrete evidence of negligent act by Siddique. They rely on Supreme Court precedents such as Sudhir Kumar Rana v. Surinder Singh to argue that contributory negligence must be proven as a result of evidence of both parties’ negligence and that lack of licence should not bar compensation without showing the deceased’s rash or negligent conduct. They submit that the Tribunal erred in dismissing the claim petition on the basis of licence status and that there is a need for fresh evidence to determine liability, with fair opportunity to both sides to present witnesses and documents; they request remand to the Tribunal for fresh adjudication within a specified timeline.

Contentions of Respondents

The respondents argue that the accident was caused due to the rider’s rash riding and neglect of duty, and that the policy is not liable given the insured’s involvement in the accident. They contend the Tribunal’s reasoning was consistent with legal principles, that contribution of negligence by the deceased cannot be ignored where licence status is absent, and that there is no error in holding the insurer not liable, or at worst limiting liability to the extent of contributory negligence. They rely on the absence of a valid driving licence as a relevant factor in establishing negligence and emphasise the insurer’s obligation to contest the claim where the rider failed to comply with licensing requirements, urging that the award be maintained or that any reduction be based on established evidence rather than presumptive conclusions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sudhir Kumar Rana v. Surinder Singh	[(2008) 12 SCC 436]	Positive	Cited to define contributory negligence and to emphasize that lack of licence alone is not conclusive of negligence; requires evidence of mutual negligence.
Dinesh Kumar J. @ Dinesh J. v. National Insurance Co. Ltd.	[(2018) 1 SCC 750]	Positive	Cited to show that deduction of 40% for lack of licence is not sustainable; absence of licence alone does not fix contributory negligence.
Satheeshan E.K. v. Mustafa K.P., and another	[2018 (4) KLT 337]	Positive	Cited for the principle that driving without licence is an offence but may not automatically lead to negligence; requires evidence of rash/negligent driving.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **MACA.No.1003 OF 2008** **AGAINST THE AWARD IN OP(MV) No. 2088/2002 DATED 06-062007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANTS/PETITIONERS:** |**1**|**N.P.USMAN KOYA, S/O. LATE. ABOOBACKER,**| |---|---| ||**AGED 48 YEARS.**| |**2**|**N.P.AMINA W/O.USMANKOYA**| ||**AGED 38 YEARS.**| |**3**|**N.P.SUMAYATH**| ||**MINOR AGED 16 YEARS**| ||**(DOB-12-5-92).**| |**4**|**N.P.SALMAN S/O.USMANKOYA**| ||**AGED 14 YEARS**| ||**APPELLANTS 3 AND 4 ARE MINORS REP BY,**| ||**THEIR LEGAL GURADIAN, THE APPELLANT NO 1.**| ||**ALL ARE RESIDING AT**| ||**IYYAMKULATHILO HOUSE**| ||**NEELADATHUPOTTAMMAL, CHEVAYUR AMSOM DESOM,**| ||**VELLIMADUKUNNU POST, KOZHICODE**| ||**BY ADVS.**| ||**SMT.LATHA PRABHAKARAN**| ||**SRI.K.M.JAMALUDHEEN**| ## **RESPONDENTS/RESPONDENTS:** **1 SALIM BABU.M.P. PADIKKAVEETTIL HOUSE,VAVAD POST, KODUVALLY, KOZHIKODE.** -2- MACA. No. 1003 of 2008 - **2 C.T.BABU S/O.THEYYAN CHUNDAKUNNUMMAL HOUSE, THAMARASSERY POST, KOZHIKODE.** - **3 THE UNITED INDIA INSURANCE COMPANY LTD DIVISIONAL OFFICE, SEEMA TOWERS, MAVOOR ROAD,, KOZHIKODE.** **R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- MACA. No. 1003 of 2008 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.2088 of 2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Siddique, son of appellants 1 and 2, and brother of appellants 3 and 4, in a motor accident which occurred on 14.05.2002, while he was riding a motorcycle bearing registration No.KL-11/J-9373. At the place of the accident, the motorcycle was hit by a mini bus bearing registration No.KL-11/F-3042, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. In the accident, he sustained fatal injuries, who was taken to the Medical College Hospital, Kozhikode, where he succumbed to the injuries on the date of accident itself. Alleging that the accident occurred due to rash and negligent driving of the mini bus by the 2[nd] respondent driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.4,00,000/- under various heads. 2. Before the Tribunal, the 3[rd] respondent insurer filed -4- MACA. No. 1003 of 2008 written statement admitting policy coverage of the mini bus involved in the accident; however, denying negligence alleged against the driver of that vehicle. The insurer contended that the accident occurred due to the rash and negligent riding of motorcycle by the deceased, who was charge sheeted by the Police. Therefore, the insurer contended that they are not liable to compensate the claimants for the death of the deceased. 3. Before the Tribunal, Exts.A1 to A3 were marked on the side of the appellants/claimants. Exts.B1 and B2 were marked on the side of the respondents. Both sides have not chosen to adduce any oral evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the deceased, who was not holding a valid driving licence, who alone was charge sheeted by the Police, in Ext.B1 charge sheet and therefore, the respondents are not liable to compensate the claimants. 5. In **Sudhir Kumar Rana v. Surinder Singh** -5- MACA. No. 1003 of 2008 **[(2008) 12 SCC 436]** the Apex Court held that 'contributory negligence' may be defined as negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. The question of contributory negligence would arise only when both parties are found to be negligent. If a person drives a vehicle without a licence, he commits an offence. The same, by itself may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck which was being driven rashly and negligently. It is one thing to say that the appellant [rider of the two wheeler] was not possessing any licence but no finding of fact has been arrived at that he was riding the two wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, only because he was not having a licence, he would not be held to be guilty of contributory negligence. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place. 6. In **Dinesh Kumar. J. @ Dinesh J. v. National** -6- MACA. No. 1003 of 2008 **Insurance Co. Ltd. [(2018) 1 SCC 750]** it was contended on behalf of the appellant [injured rider], before a ThreeJudge Bench of the Apex Court, that both the Tribunal and the High Court were manifestly in error in holding the appellant to be guilty of contributory negligence to the extent of 40%. It was contended that the Tribunal as well as the High Court proceeded on the erroneous premise that since the appellant had failed to produce the driving licence, an adverse inference on the aspect of contributory negligence would have to be drawn. The Apex Court noticed that, both the Tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of his crossexamination that the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the Tribunal indicates that absolutely no evidence -7- MACA. No. 1003 of 2008 was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant. The Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was no eye-witness. The Apex Court agreed with the submission, which has been urged on behalf of the appellant, that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. The Apex Court held that, once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the Tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance. Relying on the law laid down in **Sudhir Kumar Rana [(2008) 12 SCC 436]** the Apex Court held that the deduction of 40% which was made on the ground of contributory negligence was without any basis. 7. In **Satheeshan E.K. v. Mustafa K.P., and another [2018 (4) KLT 337]** , relying on the law laid down -8- MACA. No. 1003 of 2008 by the Apex Court in **Sudhir Kumar Rane v. Surinder Singh [(2008) 12 SCC 436]** this Court held that, if a person drives a vehicle without licence, he commits an offence. The same, by itself, may not lead to a finding of negligence as regards the accident. If the driver without licence was not driving rashly and negligenty, which contributed the accident, the mere fact that he was not having a driving licence; he cannot be held guilty of contributory negligence. 8. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that merely for the reason that the deceased was riding the motorcycle without a valid and effective driving licence it cannot be concluded that the accident occurred due to the rash and negligent riding of motorcycle by the deceased. In the absence of concrete evidence, no inference can be drawn as to contributory negligence on the part of the deceased. In such circumstances, the reasoning of the Tribunal in the impugned award for dismissing the claim petition filed by the appellants cannot be sustained. 9. In the result, this appeal is disposed of by setting -9- MACA. No. 1003 of 2008 aside the impugned award passed by the Tribunal and by remanding the matter to the Tribunal for fresh consideration after affording both sides a reasonable opportunity to adduce further evidence, both oral and documentary. 10. Since the claim petition is of the year 2002, the Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate, within a period of three months from the date of appearance of respondents 1 and 2. 11. The appellants and the 3[rd] respondent shall appear before the Tribunal on **10.02.2020.** The appeal stands disposed of as above. Sd/- **ANIL K.NARENDRAN JUDGE** das